Listen to Me! Modern Litigation’s Failure

We live in an increasingly touchy-feely society where we give respect and regard to the therapist, the counselor, and professionals generally whose purpose and process is geared towards the individual’s needs. It’s not surprising that as society has evolved, and our basic needs are met (e.g. food, shelter, safety), we strive to find belonging, build self-esteem, and achieve self-actualization. Maslow’s Hierarchy of Needs illustrates this simple concept, but it is important to recognize the significant role of our psychological and emotional needs in daily life. Emotional validation is a basic human need. Being heard and understood is essential to growth and development.

Today, more than ever, our society encourages individual expression and growth. Social media provides the tools and mechanisms to broadcast one’s voice far and wide. The internet, through programs like Skype, provides for face-to-face communication between people across the globe. Technology enables us to communicate with one another and, arguably, allows us to be heard in return.

My alma mater, Berea College, recognized the importance of a holistic approach to learning with its emphasis on “learning, labor, and service.” This tripartite emphasis was echoed again at the law school I attended. Pepperdine’s motto was “Strengthening lives for purpose, service, and leadership.” Institutions of higher education recognize that growth comes from spiritual, educational, and psychological satisfaction. When it comes to growing and learning and living, our society values the multi-faceted approach of total wellness. “Wellness” itself is all about maximizing an individual’s potential in various areas including mental, emotional, physical, social, environmental, and spiritual wellness. We recognize that to live a balanced and content life, we need emotional, psychological, and spiritual wellbeing.

Yet, somehow, when it comes to solving legal disputes, these tenets or values are significantly underappreciated or, worse, overlooked and discarded entirely.

Instead of valuing the individual and his or her needs, litigation turns a conflict between two people into a battle. Aided and armed by their lawyers, litigants pick up their swords and their weapon of choice. In the gladiator-like showdown, the litigants fight to their death. After investing time and resources in the “fight,” it becomes even more difficult to cut losses and settle. These sunk costs only drive the parties further from resolution.

Litigation is an archaic way of resolving disputes. Litigation fails to acknowledge modern day’s attempt to value the spiritual, psychological, and emotional needs and wellness of the individual. For the average individual in modern society, with the typical legal problem, the litigation process is ill-equipped to provide meaningful resolution.

The true travesty is that litigants most likely will not really get what they want from the process, even if they do “win” the final monetary judgment. Yes, people want money. But they also want to be respected and acknowledged. How can their voice be heard?

Zealous or hostile litigation quashes the opportunity to be heard. First, litigation does not provide a suitable venue for a party to speak his or her mind. Secondly, even if the litigant is given the opportunity to speak, it is unlikely that they’ll truly be heard given the setting. The cycle perpetuates itself: when you feel like you’ve been dismissed, you come out attacking rather than being conciliatory. When you aggressively attack, you further detract from what could have been a platform of genuine communication.

In representing clients in business litigation, I frequently deal with claims involving breach of contract, construction defect, and complex real estate matters in the areas of acquisition, financing, development, and land use. Despite the complexities of the legal issues in this area of law, I find it rather disappointing when the root of the dispute is simply an interpersonal conflict that for one reason or another has escalated to litigation.

When two neighbors have to go to Court to “talk” to one another, both parties will walk away unsatisfied. When litigation is employed, the battle outcome more often than not is “lose-lose.” After the mental stress and emotional toll of years in litigation, the parties risk walking away empty handed (or worse in debt from a judgment or attorneys’ fees); moreover, the parties have had little or no opportunity for meaningful engagement. Besides providing testimony via deposition—clearly not a dialogue—the parties communicate solely through their attorney. The two neighbors may live next to one another, but the only meaningful opportunity to talk is a few hours in a settlement conference or a mediation.

The arena of litigation has not stayed current with society’s acknowledgment of the individual. Although our culture embraces and values the individual’s psychological, emotional, and spiritual needs, the “go-to” mechanism for resolution (i.e. the courthouse) is no longer equipped to deal with the emotional, spiritual, and psychological principles in the field of human interactions and interpersonal conflict. As a litigator, I obviously see that there is a “time and place” for litigation. However, I recognize that for certain types of cases, the litigation route will leave parties unsatisfied. Our society has changed, progressed and litigation can no longer provide the emotional aspect that some litigant’s desire. In its present state, litigation is archaic.

In this constantly changing world, mediation offers something more. Particularly enticing is the “win-win” nature of mediated settlements as espoused by mediators and dispute resolution gurus. Most importantly, however, mediation offers the parties an opportunity to communicate their needs, and feel heard in an arena in which they can truly express themselves.